Right2Water submission to the Department for Housing, Planning, Community and Local Government in respect of the draft River Basin Management Plans for Ireland 2018-2021

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Right2Water welcomes the opportunity to submit the enclosed evidence in respect of the draft River Basin Management Plans (RBMP) for Ireland 2018-2021. The arguments and supporting evidence presented herein incorporate the results of a survey of more than 630 Right2Water affiliates and supporters (Appendix), and were formally endorsed at a public meeting of Right2Water affiliates and supporters on 29 August 2017.

1. Right2Water: Background and policy

Established in 2014, Right2Water is a campaign of activists, citizens, community groups, political parties, independent politicians and trade unions which is campaigning for the Irish government to recognise and legislate for access to clean and safe water and sanitation as a human right.Right2Water’s policy, as endorsed by our affiliates and supporters, is to demand:

  • The scrapping of metering and all domestic water charges, including the proposed excessive usage levy (i.e. charge) for households;
  • That the Joint Oireachtas Committee on Housing, Planning, Community and Local Government, along with the Irish Government, delivers a referendum to enshrine public ownership of the water system in Bunreacht na hÉireann;[1]and
  • The abolition of Irish Water, to be replaced with a national public water authority.

It is our viewthat domestic household payments to Irish Water for ‘excessive usage’ renders water a commodity and, coupled with the provision for meters in new dwellings, facilitates the phasing back in of water charges i.e. it enables a gradual reduction of the allowance thereby subjecting increasing numbers of households to charges. We are concerned that, in the absence of a referendum to enshrine public ownership of the water system in Bunreacht na hÉireann, future governments may seek to use excessive usage levies to move towards the reintroduction of universal metered charges and prepare our water system for privatisation, in part or whole, through EU Competition Law.

Right2Wateradvocates the scrapping of all domestic water chargesin favour of funding the Republic of Ireland’s public water system through progressive general taxation, with additional contributions from industries which use water, not for day-to-day living, but for profit motive – through abstraction charges and commercial rates – and low-cost government borrowing. This policy necessarily invokes the utilisation of Article 9(4) of the EU’s Water Framework Directive (WFD), which enables Member States to seek an exemption from domestic water charges if they can demonstrate that their plan enables them to fulfil the objectives of the Directive. Right2Water’s unequivocal support for utilising the 9(4) exemption is on the public record, for example in our submission to the Expert Commission on Domestic Public Water Services.[2]This position is reiterated in Section 5 below, in the context of addressing the environmental objectives and priorities set out in the draft River Basin Management Plan.

To date, Right2Water has hosted nine national demonstrations, the largest single one of which brought over 120,000 people onto the streets of Dublin. We will continueto campaign for thefull implementation of our popular demands and the protection of our water system from the persistent threat of commodification and privatisation.

2. Background and approach to developing the plan

Right2Water welcomes the Department’s acknowledgement that ‘water is essential for life’ and ‘vital to our natural environment’ (p. 20). However, we wish to reiterate the important point that the human right to water has been internationally recognised since 2010:

[The UN] recognizes the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.[3]

In accordance with this UN resolution, Right2Water believes that no one should be deprived of access to safe and clean drinking water and proper sanitation based on their ability to pay. The only way of guaranteeing zero water poverty is to fund water and wastewater services through general taxation, with additional contributions from commercial rates, abstraction charges and low-cost government borrowing.

It is telling that the Irish Government, in 2010, abstained from the UN vote that finally recognised water as a human right, and it is telling that the Department has now omitted any reference to water as a human rightfrom its draft RBMP. The reason for this, we believe, is that such recognition would undermine its agenda to commodify and privatise the public water system.

3. Review of the first cycle River Basin Management Plan

While noting theDepartment’sacknowledgmentthat there is a need for ‘further significant capital investment and operational improvements to fully address the requirements of the Urban Waste Water Treatment Directive (UWWTD) and progress towards the objectives of the Water Framework Directive’, we reject the implication that the historic underfunding of water services over the years can be solely attributed to the ‘fragmented’ nature of local authority delivery prior to 2014(p. 28). It is successive central governments, rather than local authorities, that have followed a policy of systematically underfundingwater services over many decades, including the period leading up to the establishment of Irish Water. This policy has been roundly criticised not only by Right2Water but also by the Expert Commission on Domestic Public Water Services,[4] the Environmental Protection Agency (EPA)[5], the European Commission[6]and Irish Water itself.[7]

The Department states that ‘a key learning from the first cycle is the need for an improved evidence base, and the need to use this evidence base to arrive at priorities and resultant ambitious but achievable targets. This is a central part of this second cycle plan, and one which allow for more focussed implementation of measures over the period to 2021’ (p. 32). Yetthere appears to be little or no attempt to draw upon international case study evidence or international best practice, particularly as it relates to countries with the same or similar climactic conditions, water resources, ecosystems and environmental pressures, or to undertake a comparative analysis with the Republic of Ireland’s peer countries. In the sections below, we attempt to provide this evidence for the Department’s consideration.

4. Current state of the water environment & the catchment characterisation process

Given that there is still work to be completed with regards to assessing the pressures on water bodies, particularly at a catchment scale and particularly with reference to transitional waters and groundwaters, it is difficult for Right2Water to offer a definitive assessment of this process. However, we would suggest that not enough has been done to provide a breakdown of the origins of the various pressures by source, activity and type, or to weight them for the purposes of identifying and prioritising appropriate corrective actions. This carries the danger of creating a false equivalence between large scale, commercial pressures and small producers on the one hand, and between socially useful or necessary – ‘new sustainable human’[8] – activities and exploitative profiteering activities on the other.

5. Environmental objectives and priorities

Ireland’s obligations in relation to the WFD

In outlining the ‘general thrust’ of the WFD objectives, the draft RBMP alludes to the existence of possible exemptions available to EU Member States (p. 48). This, we believe, is deliberately opaque, evasive and altogether insufficient in that it omits what Right2Water and many other stakeholders regard to be an important factor in the future provision of water services in Ireland – namely the 9(4) exemption from water charges contained in the WFD, which was secured by the Irish Government during the legislative process. To quote in full, Article 9 of the WFDstates that:

1

The exemption or derogation from water pricing is contained in Article 9(4) of the WFD, highlighted above. Drawing on the available evidence, there are a number of points Right2Water wishes to make in relation to this.

Firstly, the European Commission in response to a series of MEP questions betweenJune 2009 and December 2014 has, on the record, made the following statements:

  • The responsibility for implementation of the Water Framework Directive (WFD) lies with the Member States and there is no obligation to follow particular schemes or methods.[9]
  • There is no specific requirement in Article 9 of the WFD for cost recovery to be linked to individual consumption.[10]
  • The Commission is of the view that Directive 2000/60/EC of Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy gives the possibility for Member States to apply the provisions in Article 9.4 for specific water use activities[such as domestic use].[11]
  • Article 9(4) provides the possibility for Member States not to apply the provisions of Article 9(1) to a given water-use activity, where this is an established practice at the time of adoption of the directive and where this does not compromise the purposes and the achievement of the objectives of the directive.[12]

In addition to these Commission statements,there is legal advice provided in relation to Ireland’s EU obligations on the WFD.Firstly, the legal opinion received by Sinn Féin MEP Lynn Boylan, dated 12 July 2016, makes it clear that it is up to Member States to determine, on the basis of an economic analysis, the measures to be adopted for the purposes of the application of the principle of recovery of costs. How the Directive is to be implemented is left to the Member State, so long as the steps taken do not impede or compromise the objectives of the Directive. ‘[I]t is likely,’ the advice concludes, ‘that Ireland will be able to show that it is taking steps to attain these objectives without the need for individual direct water charging’.[13]

The advice received by Lynn Boylan has in turn been substantiated by Fianna Fail’s publication, on 3 March 2017, of the comprehensive legal advice received frombarristersDarren Lehane and Conleth Bradley. It concludes that:

a. The WFD is a framework directive which does not seek to achieve complete harmonisation of the rules of the Member States concerning water;

b. Article 9 of the WFD does not per se impose the generalised pricing obligation in respect of all activities relating to water use;

c. The objectives pursued by the WFD do not necessarily imply that the definition of water services contained in Article 2(38)(a) of the WFD must be interpreted as meaning that they subject all activities to which they refer to the principle of recovery of costs contained in Article 9 of the WFD;

d. There is no specific requirement in Article 9 of the WFD for cost recovery to rely on individual consumption;

e. The measures for the recovery of the costs of water services are one instrument, among others available to the Member States, for qualitative management of water in order to achieve rational water use;

f. The absence of pricing for water service activities will not necessarily jeopardise the attainment of the objectives of the WFD;

g. Article 9(4) of the WFD provides that a Member State shall not be in breach of the Directive if it decides in accordance with established practices not to apply the principle of costs recovery for a given water-use activity, where this does not compromise the purposes and the achievement of the objectives ofthis Directive and where the Member State reports the reasons for not fully applying Article 9(1);

h. The application of Article 9(4) is informed by certain principles, including that cost recovery is not necessarily applicable to all activities and even where such activities could – in and of themselves - be liable to undermining the WFD’s objectives; it does not mean that any lack of pricing of those activities would necessarily jeopardize the attainment of such objectives; partially suspended cost recovery is, in principle, allowed and does not necessarily imply that attainment of the objectives of the WFD have been jeopardised;

i. Member States have a very wide discretion in relation to Article 9;

j. Ireland can avail of the ‘established practice’ exemption in Article 9(4) as (i) it is for Ireland to determine what an established practice is and (ii) it was an established practice not to have domestic water charges when the Water Directive was adopted.[14]

All of this evidence combined leads to one conclusion: the Irish Government enjoys discretion to abolish domestic water chargeswithout jeopardising the Directive’s objectives.

Established practices

There is no legal definition of ‘established practices’ contained within the WFD, while the responses of the Commission to MEP questions are revealing in terms of the political subterfuge being used in collaboration with the Irish Government – all in the pursuit of imposing domestic water charges on the Irish public. On 24 June 2016, in response to a question by Marian Harkin MEP, the Commission stated that:

Ireland made a clear commitment to set up water charges to comply with the provisions of Article9(1). Ireland subsequently applied water charges and the Commission considers that the directive does not provide for a situation whereby it can revert to any previous practice.[15]

Not only does this assertion collapse under the scrutiny of the legal advice cited above, but it is compromised by the Commission’s statement that it considers ‘established practices’ to be those practices which were ‘an established practice at the time of the adoption of the directive’ (see above). This Directive was adopted on 23 October 2000, and transposed into Irish law in 2003, when it is beyond doubt that Ireland had been recovering costs for water services via general taxation since 1997.

Furthermore, the contention that Irish Water and its system of water charges, universal or for ‘excessive usage’, can be considered ‘established practice’ is simply not tenable. Citizens of the Republic of Ireland have been extremely vocal in their opposition to domestic water charges since their introduction, taking to the streets in their tens of thousands on no fewer than nine occasions to have such views heard. In February 2016, the majority of TDs elected to the 32nd Dáil – at least 97 TDs – won their seats followingpre-election pledges to abolish domestic water charges; Fianna Fáil’s subsequent u-turn represented a betrayal of its democratic mandate and has yet to be put to the electorate. In this regard, it is worth noting an Irish Times/Ipsos MRBI opinion poll from October 2016 which found that ‘almost two-thirds of voters favour the complete removal of water charges’.[16]Finally, the high level of non-payment – as high as 57% during Irish Water’s first billing cycle and 70% in its fifth cycle – indicates that the domestic water charging system has never enjoyed the consent of those whom it regards as ‘customers’.[17]

Right2Water submit that any description of a short (just over one year) experiment of payment for domestic water through a charges system as our ‘established practice’ would, if held by the EU Commission, have to be challenged in the European Court of Justice. In this regard it should be noted that this short interlude of domestic charges collapsed because of widespread public opposition, had no political mandate, and that it has now been replaced by taxation following a full independent analysis.

European case law

As noted in the Report on the Funding of Domestic Water Services in Ireland, ‘While considerable weight must be given to the opinion of the European Commission, the definitive interpretation of European law is a matter for the Court of Justice of the European Union.’[18]And the key point here is that the only legal precedent concerning the WFD is the following case taken against Germany, which the Commission lost. In this instance, the Commission argued that Germany had failed to implement the cost recovery obligations contained within Article 9 of the WFD. Although the ruling is concerned primarily with Germany’s decision not to recover costs for hydroelectricity, the Court’s judgment contains some findings which are of relevance to the arrangements being considered by Member States in relation to domestic/household water use:

56Although, as rightly pointed out by the Commission, the various activities listed in Article2(38) of Directive 2000/60, such as abstraction or impoundment, may have an impact of the state of bodies of water and are therefore liable to undermine the achievement of the objectives pursued by that directive, it cannot be inferred therefrom that, in any event, the absence of pricing for such activities will necessarily jeopardise the attainment of those objectives.

57In that regard, Article9(4) of Directive 2000/60 provides that the Member States may, subject to certain conditions, opt not to proceed with the recovery of costs for a given water-use activity, where this does not compromise the purposes and the achievement of the objectives of that directive.

58It follows that the objectives pursued by Directive 2000/60 do not necessarily imply that Article2(38)(a) thereof must be interpreted as meaning that they all subject all activities to which they refer to the principle of recovery of costs, as maintained in essence by the Commission.

59In those circumstances, the fact that the Federal Republic of Germany does not make some of those activities subject to that principle does not establish by itself, in the absence of any other ground of complaint, that that Member State has thereby failed to fulfil its obligations under Articles2(38) and 9 of Directive 2000/60.[19]

Again, we would urge the Department to take cognisance of this ruling and its implications regarding the scope to introduce flexibility provisions as part of any revision to its draft RBMP.

Evidence of the 9(4) exemption used in the River Basin Management Plans of Peer Member States

In the first series of RBMPs which were submitted in 2009/2010, several regions/Member States made use of these flexibility provisions: Scotland, Northern Ireland, certain regions in France (Scheldt, Meuse, Sambre, Rhine, Corsica, Seine, Guyana and Réunion) and Bulgaria.

In the Bulgarian and Czech Republic RBMPs at least, and according to the Commission implementation reports published in 2012, social affordability reasons were given for using the flexibility provisions.

Many Member States are, like Ireland, almost two years late insubmitting their second RBMPs. However, we can see that at least Northern Ireland and Scotland – two regions with similar climactic conditions, water resources, ecosystems and environmental pressures to the Republic of Ireland – have reiterated their intention to re-use the 9(4) derogationhaving included them in their first RBMPs for the period 2009-2015.